Tuesday, July 29, 2008

Motion to Disqualify opposing counsel denied

Courts are reluctant to grant a motion to disqualify opposing counsel where the facts allegedly creating a conflict were known or could have been discovered earlier and the motion was not filed until shortly before the trial, possibly as a delaying tactic. Court of Appeals here affirms denial.

We review the trial court's denial of a motion to disqualify for an abuse of discretion. See Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994) (per curiam). It is well-established that disqualification of a party's attorney is "a severe remedy." In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (per curiam) (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990). Because disqualification of counsel "can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice," a trial court considering a motion to disqualify "must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic." Id. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not satisfy this standard. In re Sw. Bell Yellow Pages, Inc., 141 S.W.3d 229, 231 (Tex. App.- San Antonio 2004, no pet.). Merely establishing a prior attorney-client relationship is insufficient to establish cause for disqualification. In re Chonody, 49 S.W.3d 376, 379 (Tex. App.- Fort Worth 2000, no pet.). And even if a lawyer violates a disciplinary rule, the party requesting disqualification must demonstrate that the opposing lawyer's conduct caused actual prejudice that requires disqualification. Nitla, 92 S.W.3d at 422; In re Users Sys. Servs., Inc., 22 S.W.3d 331, 336-37 (Tex. 1999).

Here, the Church moved for disqualification based on Rule 109(a)(2) of the Texas Disciplinary Rules of Professional Conduct (the "Rules"), which provides, in pertinent part:

Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client . . . if the representation in reasonable probability will involve a violation of Rule 1.05 . . . .

The Church has not established that the trial court abused its discretion in denying its motion to disqualify Ward's counsel for several reasons. At the hearing on the motion, the Church asserted that it was only when it deposed a particular witness a month before trial that it learned of Brown's intent to make some use in the trial of this case of information about the Church's accounting practices that he obtained from his representation of the Church's pastor in a child custody proceeding or that he learned from consultations with the Church's general counsel.Despite these assertions, the Church did not request the inclusion of this witness's deposition in the appellate record, and as the trial court pointed out, the Church's accounting practices are irrelevant to the breach of contract claim before the court. Moreover, the Church was aware for nearly a year that Brown was representing Ward, but did not move for disqualification until the week before trial.In sum, the Church has identified no confidential information allegedly possessed by Brown relevant to Ward's breach of contract case, nor has the Church identified any authority that would support reversal of the trial court's judgment on this basis. We therefore overrule the Church's third issue.